Opinion
No. 22-0292
12-08-2023
Eugene F. BOYCE and Kimberly D. Boyce, Petitioners v. MONONGAHELA POWER COMPANY, Frontier Communications of America, Inc., Frontier Communications Online and Long Distance, Inc., Frontier Communications Corporate Services, Inc., Frontier Communications ILEC Holdings, LLC, Atlantic Broadband (Penn), LLC, & Atlantic Broadband Finance, LLC, Respondents
William C. Brewer, Esq., Ramsey K. Jorgensen, Esq., William C. Brewer & Assoc. PLLC, Morgantown, West Virginia, Counsel for Petitioners Edward A. Smallwood, Esq., Colby S. Bryson, Esq., Post & Schell, P.C., Pittsburgh, Pennsylvania, Counsel for Respondent, Monongahela Power Company Charles C. Wise, III, Esq., Bowles Rice, LLP, Morgantown, West Virginia, Counsel for Respondents, Frontier Communications of America, Inc., Frontier Communications Online and Long Distance, Inc., Frontier Communications Corporate Services, Inc., and Frontier Communications ILEC Holdings LLC Bradley K. Shafer, Esq., Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP, Wheeling, West Virginia, Counsel for Respondents, Atlantic Broadband Finance, LLC and Atlantic Broadband (Penn), LLC
Syllabus by the Court
1. "A circuit court’s entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
2. "Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995).
3. "In order to recover in an action based on negligence the plaintiff must prove that the defendant was guilty of negligence and that such negligence was the proximate cause of the injury of which the plaintiff complains." Syl. Pt. 1, Matthews v. Cumberland & Allegheny Gas Co., 138 W. Va. 639, 77 S.E.2d 180 (1953).
4. "One requisite of proximate cause is an act or an omission which a person of ordinary prudence could reasonably foresee might naturally or probably produce an injury, and the other requisite is that such act or omission did produce the injury." Syl. Pt. 4, Matthews v. Cumberland & Allegheny Gas Co., 138 W. Va. 639, 77 S.E.2d 180 (1953).
5. "The proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have resulted." Syl. Pt. 5, Matthews v. Cumberland & Allegheny Gas Co., 138 W. Va. 639, 77 S.E.2d 180 (1953).
6. " ‘Those who operate and maintain wires charged with dangerous voltage of electricity are required to exercise a degree of care commensurate with the dangers to be reasonably apprehended therefrom; but they are not insurers against all injury therefrom.’ Pt. 1, syllabus, Maggard v. Appalachian Electric Power Co., 111 W.Va. 470, 163 S.E. 27." Syl. Pt. 7, Sutton v. Monongahela Power Co., 151 W. Va. 961, 158 S.E.2d 98 (1967).
7. " ‘A person in charge of or maintaining an instrumentality inherently dangerous is not liable to one who is injured thereby in a manner which could not be reasonably anticipated.’ Pt. 3, syllabus, Musser v. N. & W. Ry. Co., 122 W.Va. 365, 9 S.E.2d 524." Syl. Pt. 8, Sutton v. Monongahela Power Co., 151 W. Va. 961, 158 S.E.2d 98 (1967).
8. "The questions of negligence, contributory negligence, proximate cause, intervening cause and concurrent negligence are questions of fact for the jury where the evidence is conflicting or when the facts, though undisputed, are such that reasonable men draw different conclusions from them." Syl. Pt. 2, Evans v. Farmer, 148 W. Va. 142, 133 S.E.2d 710 (1963).
9. "When the material facts are undisputed and reasonable men can draw only one conclusion from them the question of negligence is a question of law for the court." Syl. Pt. 6, Matthews v. Cumberland, & Allegheny Gas Co., 138 W. Va. 639, 77 S.E.2d 180 (1953).
10. "An intervening cause, in order to relieve a person charged with negligence in connection with an injury, must be a negligent act, or omission, which constitutes a new effective cause and operates independently of any other act, making it and it only, the proximate cause of the injury." Syl. Pt. 3, in part, Wehner v. Weinstein, 191 W. Va. 149, 444 S.E.2d 27 (1994).
11. "A tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor at the time of his negligent conduct." Syl. Pt. 13, Anderson v. Moulder, 183 W. Va. 77, 394 S.E.2d 61 (1990).
Appeal from the Circuit Court of Monongalia County, The Honorable Susan B. Tucker, Judge, Civil Action No. 16-C-219
William C. Brewer, Esq., Ramsey K. Jorgensen, Esq., William C. Brewer & Assoc. PLLC, Morgantown, West Virginia, Counsel for Petitioners
Edward A. Smallwood, Esq., Colby S. Bryson, Esq., Post & Schell, P.C., Pittsburgh, Pennsylvania, Counsel for Respondent, Monongahela Power Company
Charles C. Wise, III, Esq., Bowles Rice, LLP, Morgantown, West Virginia, Counsel for Respondents, Frontier Communications of America, Inc., Frontier Communications Online and Long Distance, Inc., Frontier Communications Corporate Services, Inc., and Frontier Communications ILEC Holdings LLC
Bradley K. Shafer, Esq., Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP, Wheeling, West Virginia, Counsel for Respondents, Atlantic Broadband Finance, LLC and Atlantic Broadband (Penn), LLC
ARMSTEAD, Justice:
Petitioner Eugene Boyce ("Petitioner") was attempting to make a residential delivery in the course of his employment for Lowe’s when he encountered overhead communication lines that his truck could not clear. He attempted to move the communication lines by climbing on top of his delivery truck and wrapping shrink-wrap around the communication lines, which were in close proximity to an energized electrical line. Petitioner contacted the energized electrical line and was electrocuted. He suffered severe injuries.
Petitioner and his wife, Kimberly Boyce (collectively "Petitioners"), brought a negligence action against Respondents, the owners of the electrical and communication lines. Following discovery, the Circuit Court of Monongalia County granted summary judgment in favor of Respondents. It found that Petitioner’s "actions were negligent and serve as the only proximate cause" of the incident. The circuit court also found that even if a genuine issue of material fact existed as to Respondents’ negligence, Petitioner’s actions "constitute an intervening and superseding cause of the [i]ncident and alleged injuries." After the circuit court granted summary judgment in favor of Respondents, Petitioners filed a motion to alter judgment pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure. The circuit court denied this motion on March 25, 2022.
Respondents can be grouped into three categories: (1) Monongahela Power Company ("Respondent Mon. Power"); (2) Frontier Communications of America, Inc., Frontier Communications Online and Long Distance, Inc., Frontier Communications Corporate Services, Inc., and Frontier Communications ILEC Holdings LLC (collectively "Respondent Frontier"); and (3) Atlantic Broadband (Penn), LLC and Atlantic Broadband Finance, LLC (collectively "Respondent Atlantic").
See Wal-Mart Stores East, L.P. v. Ankrom, 244 W. Va. 437, 854 S.E.2d 257 (2020) ("As to the first element, duty, ‘[i]n order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission in violation of a duty owed to the plaintiff. No action for negligence will lie without a duty broken.’ As we have explained, foreseeability is key when determining whether a particular actor operates under a duty of care: ‘The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?’ ") (footnote and citation omitted).
On appeal, Petitioners mainly contend that proximate cause, foreseeability, and intervening cause involve questions of fact that should be decided by a jury. After review, we agree with the circuit court that Petitioner’s actions were (1) the sole proximate cause of the incident and (2) "constitute an intervening cause." Therefore, we affirm the judgment of the circuit court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 11, 2014, Petitioner was working as a boom truck operator for Lowe’s. The incident at issue occurred when he was attempting to deliver construction materials to a residential customer, Brandon Tucker ("Mr. Tucker"), in Morgantown, West Virginia. When he arrived at Mr. Tucker’s residence, Petitioner encountered low-hanging communication lines in Mr. Tucker’s driveway that blocked the path of his boom truck. The communication lines were owned by Respondents Frontier and Atlantic. The lowest communication line was approximately 14’4" above the ground. Respondent Mon. Power owned two electrical lines, one energized and one neutral, that ran above the communication lines. The energized line was approximately 20’6" above the ground and the neutral line was approximately 23’7" above the ground.
Respondent Mon. Power owned the poles upon which the communication lines and the electrical lines were strung.
At least one other jurisdiction has found it to be reasonably foreseeable that a motorist encountering a low-hanging electrical or communications line might attempt to raise that line so that his or her vehicle may pass beneath it. See Alejandro-Ortiz v. Puerto Rico Elec. Power Auth., 908 F.Supp.2d 290 (D.P.R. 2012), rev'd in part and vacated in part on other grounds, 756 F.3d 23 (1st Cir. 2014). In Alejandro-Ortiz, a case factually similar to the one at bar, the plaintiff was driving a garbage truck, encountered low-hanging lines, sought to move those lines by tying them up with rope, and came into contact with an electrical line resulting in severe injuries. The court held:
Here, the line was apparently low enough that the truck could not clear it, and Alejandro testified that he felt … obligated to continue on his route and that it was a common practice to move the lines when they hung low (and he testified, moreover, that he had previously had to move this particular line). We find, therefore, that it is easily foreseeable that [the defendant’s] allowing a cable to hang low enough to block vehicles’ passage—even if only large vehicles—could result in individuals attempting to move the cables themselves, and thus continue on their wav, even if such conduct was itself negligent.
Id. at 295.
Petitioner initially had Mr. Tucker assist him by using a wooden board to push the communication lines upward. This did not solve the problem. Petitioner then climbed on top of his truck, wrapped shrink-wrap around the communication lines and contacted the energized electrical line with his hand. Petitioner was electrocuted upon contacting the energized electrical line and suffered serious injuries, including the amputation of his right hand.
Following this incident, Petitioners filed the instant lawsuit, asserting negligence claims against the three Respondents. Petitioners alleged that Respondents Frontier and Atlantic were negligent because their communication lines were below the height clearance requirements set forth in applicable laws and regulations, including the National Electric Safety Code ("NESC"). Further, Petitioners asserted that Respondent Mon. Power was negligent because the neutral electrical line was installed above the energized electrical line "in violation of applicable laws and regulations."
Multiple witnesses were deposed during discovery. Mr. Tucker, the residential customer who witnessed the incident, described the sequence of events leading up to Petitioner’s electrocution as follows:
Q. [T]ake us through from the time you saw him with the shrink wrap[,] what you witnessed.
A. Well, like I said, I was walking around the side of the truck and he had already had some of it [the shrink-wrap] wrapped around the wire.
Q. That is the lowest wire?
A. Yes, sir. By the time that I was – I came over around, he grabbed that bottom wire to lift it up and as soon as he did, it started electrocuting him.
Q. So he grabbed the lowest wire?
A. Yeah, the wire that has the shrink wrap around it is the wire that he grabbed.
….
Q. Prior to him starting to do that [shrink-wrapping the wires], did he tell you he was going to do that?
A. Yeah, he did. He said he was going to try something else with this shrink wrap, he did it before. That was as I was walking around. By the time I got around, he already had it wrapped up and grabbed it and it electrocuted him.
….
Q. So you think he was trying to push the wires up?
A. I thought he was pushing them up to the next wires up in the air. I don’t know what he was trying to do, honestly. I don’t know. He said he did it before, so I figured that he knew what the heck he was doing.
….
Q. So when he was pushing these up, it was to get them closer to the next wire in order to have those hold up the lower wires?
A. Correct.
Petitioner was also deposed. He testified that he did not remember the accident or the events leading up to it. However, he stated that during the time he has driven a boom truck, he had occasionally moved utility lines to allow his truck to pass under them by shrink-wrapping the lines in the same manner that he used in the instant case. He stated that he was "self-taught" in this regal’d. When asked to describe his shrink-wrapping method, Petitioner replied, "Wrap shrink-wrap around the other ones [lines] to get -- to lift the bottom one up to where I could clear my truck." Additionally, Petitioner testified that he never received any training to identify or handle electrical or communication lines, but stated that he "had the understanding that the power line was always on top." He also testified, "I would never touch a power line knowing that it was power."
Petitioner had previously driven a boom truck for a drywall supply company but he did not state the amount of time he worked for this company.
In 2015, the West Virginia Legislature adopted a modified comparative negligence system wherein fault may be apportioned among the plaintiff and the defendant or defendants according to their degree of responsibility for the injury. See W. Va. Code §§ 55-7-13a to -13d (2016). In particular, section 55-7-13c(c) explains that "[a]ny fault chargeable to the plaintiff shall not bar recovery by the plaintiff unless the plaintiff’s fault is greater than the combined fault of all other persons responsible for the total amount of damages, if any, to be awarded." To that end, section 55-7-13d provides that the trier of fact—whether the judge or a jury—"shall consider the fault of all persons who contributed to the alleged damages" and that "the court shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings, indicating the percentage of the total fault that is allocated to each party[.]" Id. § 55-7-13d(a)(1), -13d(6).
Both parties retained expert witnesses who were deposed. Petitioners’ expert witness, James Orosz, testified during his deposition that the communication lines, owned by Respondents Frontier and Atlantic, were too low and were in violation of the NESC. Regarding the Mon. Power lines, Mr. Orosz was not critical of their height. Instead, he found that the configuration of the lines, the neutral line on top and the energized line below it, was "a violation of the standard of care and the standard of installation and maintenance of those lines." Mr. Orosz did not foreclose the possibility that there could be an instance where having the neutral line above the energized line would be appropriate, but in this case, he found no reason why the energized line was below the neutral line. Finally, Mr. Orosz conceded that the electrical lines met all NESC clearance requirements and admitted that attempting to shrink-wrap utility lines together was not a safe practice.
Respondent Mon. Power’s expert witness, Russell Simmons, testified that "the construction of the overhead lines was consistent with the [NESC]." Mr. Simmons opined that the NESC was silent as to whether the energized line should be placed above or below the neutral line under the circumstances of the present case. He also testified that it is not uncommon for the energized line to be placed below the neutral line, explaining that the geography and environment in which the lines are strung affects their height on the pole. He stated that a common reason for placing the energized line below the neutral line "was to minimize the dropping of limbs from above down onto the lines and not tripping the circuit so that it isn’t in close proximity."
Mr. Simmons explained that one circuit was present on the poles where Petitioner was injured. According to Mr. Simmons, the NESC is silent as to whether the energized line should be placed above or below the neutral line when only one circuit is present.
The majority glosses over the fact that this alone establishes a prima facie case of negligence against those respondents insofar as the lines did not meet the height requirements established in the then-applicable versions of the National Electric Safety Code, adopted by the West Virginia Public Service Commission in the West Virginia Code of State Rules sections 150-3-5.1.1 and -5.1.2 (2018). See Syl. Pt. 1, in part, Johnson v. Monongahela Power Co., 146 W. Va. 900, 123 S.E.2d 81 (1961) ("Valid rules and regulations of the Public Service Commission of West Virginia, which incorporate and adopt certain minimum requirements of the National Safety Code with regard to the external installation of electrical equipment, have the force of statutory law and the failure to comply therewith would constitute prima facie negligence.").
At the close of discovery, Respondents filed motions for summary judgment. During the hearing on these motions, counsel for Respondent Atlantic stated that the main issue underlying the motions for summary judgment was proximate cause. He explained:
It is uncontested that [Petitioner] arrived on the scene in his boom truck from Lowe’s. It is uncontested that the boom truck could not pass under the wires from Frontier and Atlantic…. It’s uncontested that [Petitioner] climbed out of his truck, climbed up on to the uninsulated boom without any personal protective equipment whatsoever, and on his own tried to raise these wires by wrapping them in saran wrap and attaching them to the energized Mon. Power wire…. When stretching wires across, whether it be Atlantic, Frontier or Mon. Power, it is not reasonably foreseeable on the part of any of us that [Petitioner] is going to climb out of his truck and do the things that he did on the day of the accident[.] … And since there are no … genuine issues of material fact here, that proximate cause rests entirely with [Petitioner] and his actions.
In response, Petitioners’ counsel highlighted Mr. Orosz’s expert opinions that were critical of Respondents. Further, Petitioners’ counsel asserted that the issues of proximate cause and Respondents’ alleged negligence should be resolved by a jury.
The circuit court granted Respondents’ motions for summary judgment. It found that Respondents
could not have reasonably anticipated that a truck driver without any training and/or experience in the electrical field would: 1) climb on top of a truck into imminent danger with contact from utility wires; 2) apply shrink-wrap around the communication lines; and 3) grab a live electrical line with his bare hand.
[Petitioner’s] actions were negligent and serve as the only proximate cause of the [i]ncident as his actions, unlike [Respondents’] alleged actions, were reasonably expected to produce an injury and the specific type of incident that unfortunately occurred.
Additionally, the circuit court’s order provides that even if it "determined that a genuine issue of material fact existed as to whether [Respondents] were negligent … [Petitioner’s] actions constitute an intervening and superseding cause of the [i]ncident and alleged injuries." The circuit court noted that this Court has stated that "[g]enerally, a willful … act breaks the chain of causation." Yourtee v. Hubbard, 196 W. Va. 683, 690, 474 S.E.2d 613, 620 (1996). Relying on Yourtree, the circuit court found that there was no genuine issue of material fact "as to whether [Petitioner] willfully contacted the communications lines and power line. The fact that [Petitioner] may have believed that the power line was a neutral line and that he may have lacked intent to electrocute himself is irrelevant." According to the circuit court, Petitioner’s actions "were voluntary and operate wholly independently of any of [Respondents’] actions. [Petitioner’s] acts break the causal chain and relieve [Respondents] of any liability in this matter."
Petitioners filed a motion to alter the judgment pursuant to Rule 59(e). By order entered on March 25, 2022, the circuit court denied Petitioners’ motion, finding that Petitioners did not present a change in law or new evidence that would entitle them to relief under Rule 59(e). Following entry of the circuit court’s order, Petitioners filed the instant appeal.
See Syl. Pt. 2, Mey v. Pep Boys-Manny, Moe & Jack, 228 W. Va. 48, 717 S.E.2d 235 (2011) ("A motion under Rule 59(e) of the West Virginia Rules of Civil Procedure should be granted where: (1) there is an intervening change in controlling law; (2) new evidence not previously available comes to light; (3) it becomes necessary to remedy a clear error of law or (4) to prevent obvious injustice.").
II. STANDARD OF REVIEW
[1, 2] This appeal requires us to examine the circuit court’s ruling granting summary judgment in favor of Respondents. We have held that "[a] circuit court’s entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Further,
[s]ummary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.
Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995).
III. ANALYSIS
On appeal, Petitioners have raised multiple assignments of error that can be distilled into two main categories. First, Petitioners contend that the circuit court erred by finding that Petitioner’s actions "were negligent and serve as the only proximate cause" of the incident. Second, Petitioners argue that the circuit court erred by ruling that even if a genuine issue of material fact exists as to Respondents’ negligence, Petitioner’s actions constitute an intervening and superseding cause of the incident. We address each of these issues in turn.
Petitioners contend that the circuit court erred by: (1) finding that Respondents were not the proximate cause of Petitioner’s injuries because foreseeability and proximate cause should be resolved by a jury; (2) failing to find Respondents negligent as a matter of law based on Petitioners’ claim that Respondents violated the NESC; (3) relying upon Maggard v. Appalachian Electric Power Co., 111 W. Va. 470, 163 S.E. 27 (1932), because the facts of Maggard are not "nearly identical" to the facts of this case, as stated by the circuit court; (4) finding that it was undisputed that Petitioner intentionally grabbed the primary wire because there is no evidence to that effect; (5) relying on irrelevant OSHA regulations; (6) finding that Petitioner’s actions were an intervening and superseding cause; (7) relying on Petitioners' expert’s testimony that Petitioner was a trespasser because Petitioners’ counsel objected to the question at the deposition and there was no admissible testimony that Petitioner was a trespasser; and (8) finding that Petitioner assumed the risk and that his claims were therefore barred from recovery.
A. Proximate Cause
Petitioners assert that proximate cause and foreseeability are issues that should have been decided by a jury. They posit that "Respondents should have reasonably foreseen that their failure to abide by the professional standards set forth in the NESC would cause harm to persons." Further, Petitioners contend that the circuit court erred by concluding that the operative facts as to how the incident occurred are undisputed. According to Petitioners, the facts are disputed or susceptible to more than one interpretation, therefore, resolving the issue of proximate cause by summary judgment was improper.
By contrast, Respondents assert that the operative facts are undisputed and demonstrate that Petitioner’s actions were the sole proximate cause of his injuries. According to Respondents, it was not reasonably foreseeable that when confronted with low-hanging wires, a delivery truck driver without any training in the electrical field would climb on top of his truck, shrink-wrap communication lines, and contact the electrical line with his bare hand.
[3] After review, we agree with Respondents. As explained below, we find that the issue of proximate cause was properly resolved by the circuit court because the operative facts are undisputed and susceptible to only one conclusion. Similarly, we agree with the circuit court’s conclusion that Respondents could not reasonably foresee that a truck driver without any training in the electrical field would climb on top of a truck, shrink-wrap communication lines, and contact an energized electrical line. Our analysis explaining these conclusions includes: (1) a discussion of our law on proximate cause, foreseeability, and the degree of care a utility provider must exercise to prevent injury; (2) whether the issue of proximate cause may be resolved as a matter of law; and (3) application of the law in the foregoing categories to the facts of this case.
[4] This Court has held that "[i]n order to recover in an action based on negligence the plaintiff must prove that the defendant was guilty of negligence and that such negligence was the proximate cause of the injury of which the plaintiff complains." Syl. Pt. 1, Matthews v. Cumberland & Allegheny Gas Co., 138 W. Va. 639, 77 S.E.2d 180 (1953). In Evans v. Farmer, 148 W. Va. 142, 133 S.E.2d 710 (1963), we noted that proximate cause can generally be defined as
that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred…. The overall factual situation must be taken into consideration and the solution of problems presented thereby must be based on logic, common sense, justice and precedent. Each case, therefore, in relation to the determination of proximate cause, necessarily must be decided upon its own peculiar facts.
Id. at 149, 133 S.E.2d at 715.
Additionally, the Court in Matthews recognized the intertwined nature of foreseeability and proximate cause:
A person is not liable for damages which result from an event which was not expected and could not have been anticipated by an ordinarily prudent person. If an occurrence is one that could not reasonably have been expected the defendant is not liable. Foreseeableness or reasonable anticipation of the consequences of an act is determinative of defendant’s negligence …. The law only requires reasonable foresight, and when the injury complained of is not reasonably foreseeable, in the exercise of due care, the party whose conduct is under investigation is not answerable therefor. Foreseeable injury is a requisite of proximate cause, and proximate cause is a requisite for actionable negligence, and actionable negligence is a requisite for recovery in an action for personal injury negligently inflicted.
138 W. Va. at 653-654, 77 S.E.2d at 188-189 (internal citation and quotation omitted, emphasis added).
Similarly, one treatise addressing foreseeability and proximate cause noted: "The foreseeability factor is vital to establishing proximate cause and the negligence claim overall; if an injury was not foreseeable, then there was no negligence." Vicki Lawrence MacDougall, Negligence: Purpose, Elements and Evidence: The Role of Foreseeability in the Law of Each State, 389-90 (2018). See also Syl. Pt. 2, McCoy v. Cohen, 149 W. Va. 197, 140 S.E.2d 427 (1965) ("A fundamental legal principle is that negligence to be actionable must be the proximate cause of the injury complained of and must be such as might have been reasonably expected to produce an injury.").
[5] Based on this discussion, the Court in Matthews held in syllabus points four and five that:
4. One requisite of proximate cause is an act or an omission which a person of ordinary prudence could reasonably foresee might naturally or probably produce an injury, and the other requisite is that such act or omission did produce the injury.
5. The proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have resulted.
[6, 7] In addition to our general law on proximate cause, this case requires us to specifically examine the degree of care Respondents were required to undertake. This Court has explained that those who operate inherently dangerous instrumentalities, such as utility providers, must exercise care commensurate with such dangers. However, we have cautioned that such entities are not liable for unforeseeable injuries that result therefrom. In syllabus points seven and eight of Sutton v. Monongahela Power Co., 151 W. Va. 961, 158 S.E.2d 98 (1967), we held:
7. "Those who operate and maintain wires charged with dangerous voltage of electricity are required to exercise a degree of care commensurate with the dangers to be reasonably apprehended therefrom; but they are not insurers against all injury therefrom." Pt. 1, syllabus, Maggard v. Appalachian Electric Power Co., 111 W.Va. 470, 163 S.E. 27.
We reject Petitioners argument that the circuit court erred by relying on Maggard v. Appalachian Electric Power Co., 111 W. Va. 470, 163 S.E. 27. In Maggard, the plaintiff was injured after contacting a live electrical wire while working for a construction company. The construction company contacted the power company prior to the incident and requested that it move its power lines to accommodate the construction project. While the facts of Maggard are not "nearly identical" to the instant case, the main takeaway from Maggard is applicable herein, namely that a utility provider "is not chargeable with negligence where someone, doing an act which [it] had no reason to expect or anticipate, suffers an injury[.]" Id. at 477, 163 S.E. at 30.
8. "A person in charge of or maintaining an instrumentality inherently dangerous is not liable to one who is injured thereby in a manner which could not be reasonably anticipated." Pt. 3, syllabus, Musser v. N. & W. Ry. Co., 122 W.Va. 365, 9 S.E.2d 524.
(Emphasis added).
[8, 9] Finally, we note that this Court has held that, "[t]he questions of negligence, contributory negligence, proximate cause, intervening cause and concurrent negligence are questions of fact for the jury where the evidence is conflicting or when the facts, though undisputed, are such that reasonable men draw different conclusions from them." Syl. Pt. 2, Evans v. Farmer, 148 W. Va. 142, 133 S.E.2d 710. However, when "all the evidence relied upon by a party is undisputed and susceptible to only one inference, the question of proximate cause becomes a question of law." Harbaugh v. Coffinbarger, 209 W. Va. 57, 65, 543 S.E.2d 338, 346 (2000) (citation omitted). See also Syl. Pt. 6, Matthaws, 138 W. Va. 639, 77 S.E.2d 180 ("When the material facts are undisputed and reasonable men can draw only one conclusion from them the question of negligence is a question of law for the court.").
Applying the foregoing to the instant case, we first conclude that the operative facts as to how the incident occurred are not in dispute. It is undisputed that Petitioner climbed on top of his truck, shrink-wrapped the communication lines, and contacted the energized electrical line that was approximately 20’6" above the ground. In Petitioner’s deposition, he admitted that he had previously used this shrink-wrapping method. Further, Mr. Tucker testified to this sequence of events and stated that Petitioner told him that he had previously used this same shrink-wrapping method. The fact that Petitioner testified that he would not intentionally grab an energized electrical line does not create a question of fact. The circuit court did not find, nor do Respondents argue, that Petitioner specifically intended to grab an energized electrical line. Instead, the undisputed facts demonstrate that all of the actions that Petitioner took that culminated in his contact with the energized electrical line were intentional and that these intentional actions resulted in his injuries.
[10] Next, we find that the circuit court did not err by concluding that these undisputed facts "are such that reasonable persons can draw only one conclusion with respect to proximate cause[.]" Again, the undisputed facts are that Petitioner was confronted with low-hanging communication wires. He then intentionally climbed on top of his truck, applied shrink-wrap around the communication wires, and contacted an energized electrical line that was approximately 20’6" above the ground. Further, it is undisputed that Petitioner did not have any training with electrical or communication lines and that he was "self-taught" in regard to shrink-wrapping utility lines. Under syllabus point four of Matthews, "[o]ne requisite of proximate cause is an act … which a person of ordinary prudence could reasonably foresee might naturally or probably produce an injury[.]" 138 W. Va. 639, 77 S.E.2d 180. We find that Petitioner’s intentional actions are such that a person of "ordinary prudence could reasonably foresee" would produce an injury. Based on these undisputed facts, we agree with the circuit court that the only inference that can be drawn is that Petitioner’s actions were the sole proximate cause of the incident and his injuries.
Because Petitioner’s actions were intentional and operate as the sole proximate cause of the incident and his injuries, it is unnecessary to determine whether Petitioner was a trespasser at the time the injuries occurred.
Additionally, we agree with the circuit court’s conclusion that Respondents could not reasonably have anticipated Petitioner’s actions. We find that it is not reasonably foreseeable that when confronted with low-hanging communication lines, Petitioner would undertake a sequence of actions that resulted in him contacting an energized electrical line that was 20’6" above the ground. We emphasize that there has been no claim that the height of this electrical line was improper. "A person in charge of or maintaining an instrumentality inherently dangerous is not liable to one who is injured thereby in a manner which could not be reasonably anticipated." Syl. Pt. 8, Sutton, 151 W. Va. 961, 158 S.E.2d 98 (emphasis added). We conclude that Petitioner’s intentional actions that resulted in his injuries could not have been reasonably anticipated by Respondents.
Petitioner’s intentional actions distinguish this case from a number of previous cases in which we have found that a utility provider may be liable if a victim’s contact with a power line was accidental or inadvertent. See Grillis v. Monongahela Power Co., 176 W. Va. 662, 346 S.E.2d 812 (1986) (painter hired to paint railroad bridge injured when his equipment came in contact with transmission wire under bridge); Gault v. Monongahela Power Co., 159 W. Va. 318, 223 S.E.2d 421 (1976) (landowner looking for lost livestock on own property came into contact with sagging high voltage wire); Lancaster v. Potomac Edison Co., 156 W. Va. 218, 192 S.E.2d 234 (1972) (house painter on ladder came in contact with high voltage wires close to house).
Further, we note that Petitioners assert that an employee of Respondent Mon. Power who was deposed in this matter, Paul Corbin, testified that he had seen wires strung together prior to the instant case. Based on this testimony, Petitioners assert that Respondents could reasonably have foreseen Petitioner’s actions in the instant case. We find that Mr. Corbin's general testimony about seeing wires strung together in the past does not create a question of fact as to whether Respondents could have reasonably foreseen Petitioner’s specific actions in the instant case. Mr. Corbin did not testify that he had witnessed a delivery truck driver with no training in the electrical field (1) climb on top of a truck; (2) apply shrink-wrap around communication lines; and (3) contact an energized electrical line that was 20’6" above the ground with his bare hand.
Accordingly, we find that the circuit court properly resolved the issue of proximate cause in its summary judgment order based on the undisputed facts of this matter. Further, we find that Respondents could not have reasonably anticipated Petitioner’s actions that led to his injuries. In so ruling, we echo this Court’s statement in Matthews that, "[i]f an occurrence is one that could not reasonably have been expected the defendant is not liable." 138 W. Va. at 653, 77 S.E.2d at 188. A scenario in which a delivery truck driver climbs on top of his truck and uses shrink-wrap to secure utility lines together and in the process grabs an energized electrical line is simply not reasonably foreseeable. Therefore, we find no error in the circuit court’s determination that Petitioner’s actions were the sole proximate cause of his injuries.
B. Intervening/Superseding Cause
[11] Next, Petitioners assert that the circuit court erred when it determined that even if a genuine issue of material fact existed as to Respondents’ negligence, Petitioner’s actions were an intervening or superseding cause of his injuries. Petitioners claim that to be an intervening or superseding act, the person "must be acting independently of the originally negligent parties’ actions." Petitioners assert that in the instant case, Petitioner was on top of the truck, attempting to fix the dangerous situation created by Respondents’ negligence. Based on their argument that Petitioner’s alleged negligence was not independent of Respondents’ negligence, Petitioners argue that intervening cause is an issue that should have been decided by a jury.
Conversely, Respondents assert that the circuit court correctly determined that Petitioner’s actions were voluntary, willful, and operate independently of any potential negligent act committed by Respondents. Because Petitioner’s willful and intentional actions were the sole cause of his injuries, Respondents assert that the causal chain is broken and that they are relieved of any potential liability. We agree.
[12] This Court has explained the concept of intervening cause as follows:
An intervening cause, in order to relieve a person charged with negligence in connection with an injury, must be a negligent act, or omission, which constitutes a new effective cause and operates independently of any other act, making it and it only, the proximate cause of the injury.
Syl. Pt. 3, in part, Wehner v. Weinstein, 191 W. Va. 149, 444 S.E.2d 27 (1994) (internal quotation and citation omitted).
[13, 14] Further, we have noted that "the function of an intervening cause [is that of] severing the causal connection between the original improper action and the damages." Harbaugh, 209 W.Va. at 64, 543 S.E.2d at 345. This Court has emphasized that foreseeability is a key factor in deciding whether intervening cause applies: "A tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor at the time of his negligent conduct." Syl. Pt. 13, Anderson v. Moulder, 183 W. Va. 77, 394 S.E.2d 61 (1990) (emphasis added). In Yourtee v. Hubbard, this Court recognized the instances in which an intervening cause can sever the causal connection, providing that "[g]enerally, a willful, malicious, or criminal act breaks the chain of causation." 196 W. Va. at 690, 474 S.E.2d at 620 (emphasis added). Finally, we note that as with proximate cause, intervening cause is normally a jury question, except in instances where only one inference can be drawn from the undisputed facts. See Syl. Pt. 2, Evans, 148 W. Va. 142, 133 S.E.2d 710.
See also Hairston v. Alexander Tank and Equipment Co., 310 N.C. 227, 311 S.E.2d 559, 567 (1984) ("The test by which the negligent conduct of one is to be insulated as a matter of law by the independent negligent act of another, is reasonable unforeseeability on the part of the original actor of the subsequent intervening act and resultant injury.").
After review, we find that the circuit court properly concluded that Petitioner’s actions were an intervening cause of the incident and his injuries. While there is a dispute as to Respondents’ negligence, the parties’ expert witnesses offered differing conclusions in this regard, we have determined that the operative facts regarding how the incident occurred are not in dispute. All of Petitioner’s actions were intentional and willful: he climbed on top of his truck, applied shrink-wrap to the communication lines, and contacted the energized electrical line that was approximately 20’6" above the ground. Therefore, consistent with Yourtee and with our previous conclusion that Respondents could not reasonably have foreseen the actions that Petitioner took upon being confronted with the low-hanging communication lines, we agree with the circuit court that Petitioner’s actions constitute intervening acts; thereby breaking the chain of causation.
IV. CONCLUSION
We agree with the circuit court’s conclusion that Respondents are entitled to summary judgment. Therefore, we affirm the circuit court’s March 25, 2022, order.
Affirmed.
JUSTICE HUTCHISON and JUSTICE WOOTON dissent and reserve the right to file dissenting Opinions.
WOOTON, J., dissenting:
Encountering low-hanging communications wires while driving a delivery truck, petitioner Eugene F. Boyce ("Mr. Boyce") attempted to move the wires so that his truck could pass beneath by climbing atop the truck, wrapping the communications wires with plastic wrap, and hoisting them out of the way. Mr. Boyce was electrocuted in this en- deavor, sustaining severe injuries. He and his wife brought a negligence action against the respondents – Monongahela Power Company ("Mon Power"), Frontier Communications of America ("Frontier"), and Atlantic Broadband – which maintained the lines at the site of the accident. The circuit court ultimately granted summary judgment for the respondents on the ground that Mr. Boyce’s conduct was not foreseeable to the respondents and was the proximate cause of his injuries. A majority of this Court has affirmed the lower court’s reasoning and its judgment. However, I disagree with the majority’s reasoning and result. While Mr. Boyce’s conduct was undoubtedly negligent in its own right – one would be hard-pressed to argue otherwise – there are questions of foreseeability and causation in this case that should have been presented to a jury for resolution. Accordingly, I respectfully dissent.
The thrust of the majority’s analysis is that Mr. Boyce’s conduct and resulting injury were not reasonably foreseeable to the respondents. The majority further concludes that Mr. Boyce’s conduct, being both willful and unforeseeable, constituted an intervening cause of his injury such that the respondents are not liable. While that may well be what a jury finds at the end of the day, after considering all of the evidence and determining the credibility of the witnesses, the fact is that determinations of foreseeability, causation, and the apportionment of fault among the parties are decisions for the jury to make, not the circuit court.
The standard of review for this Court’s review of the circuit court’s grant of summary judgment is:
Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.
Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995). The majority concludes that as a matter of law Mr. Boyce’s conduct and injury were not reasonably foreseeable to the respondents, and therefore no rational trier of fact could have found for the petitioners.1a I strongly disagree with the majority’s assessment with respect to the respondent Mon Power, and also disagree with the majority’s assessments regarding the remaining respondents. This Court has made clear that persons and companies operating or maintaining dangerous instrumentalities such as electrical lines are held to a higher degree of care than the average person; they must exercise care "commensurate with the dangers to be reasonably apprehended" from the instrumentality they manage. Syl. Pt. 1, Maggard v. Appalachian Elec. Power Co., 111 W. Va. 470, 163 S.E. 27 (1932) ("Those who operate and maintain wires charged with dangerous voltage of electricity are required to exercise a degree of care commensurate with the dangers to be reasonably apprehended therefrom; but they are not insurers against all injury therefrom."). We have further explained that "[a] person in charge of or maintaining an instrumentality inherently dangerous is not liable to one who is injured thereby in a manner which could not be reasonably anticipated." Syl. Pt. 3, Musser v. Norfolk & W. Ry. Co., 122 W. Va. 365, 9 S.E.2d 524 (1940) (emphasis added).
"Reasonable anticipation" is simply another formulation of the well-established rule that an injury must have been reasonably foreseeable, which in turn is a requisite for determining the proximate cause of the injury. See Syl. Pt. 4, Matthews v. Cumberland & Allegheny Gas Co., 138 W. Va. 639, 77 S.E.2d 180 (1953); see also id, at 653, 77 S.E.2d at 188 ("A person is not liable for damages which result from an event which was not expected and could not have been anticipated by an ordinarily prudent person."). In light of the enhanced degree of care required of Mon Power in this case pursuant to our precedents, the question is whether a company in Mon Power’s position would have reasonably foreseen the inciting event here — Mr. Boyce’s attempt to tie up the communications lines in order to enable his truck to pass under them. The testimony from Mon Power’s own employee, Paul Corbin, confirms that Mr. Boyce’s actions were indeed foreseeable;2a when asked whether he had seen other instances of unauthorized persons moving electrical lines, Mr. Corbin stated, "Not as much with cellophane, but I’ve actually seen where people has [sic] tied it up with like shoestrings or rope or something, yes." Although one could argue that Mr. Corbin’s observations were uncorroborated by other evidence and thus an insufficient basis for finding that the power company was on notice that individuals might attempt to tie up their low-hanging lines, that is an argument for the jury, not for the circuit court. Likewise a jury could reasonably find that the other respondents, in maintaining lines on the same poles, were similarly aware of this type of conduct. In short, the circuit court erred in deciding the issue of foreseeability as a matter of law, as the evidence was sufficient to create a genuine issue of material fact for resolution by a jury. As this Court has held,
"the determination of whether a plaintiff is owed a duty of care by a defendant must be rendered by the court as a matter of law," [Syl. Pt. 5, in part, Aikens v. Debow, 208 W. Va. 486, 541 S.E.2d 576 (2000),] but we have also recognized that the duty determination may depend, in part, on the resolution of factual questions, particularly questions of foreseeability. To that end, " ‘[w]hen the facts about foreseeability as an element of duty are disputed and reasonable persons may draw different conclusions from them, two questions arise—one of law for the judge and one of fact for the jury.’ " [Syl. Pt. 8, Marcus v. Staubs, 230 W. Va. 127, 736 S.E.2d 360 (2012) (quoting Syl. Pt. 11, Strahin v. Cleavenger, 216 W. Va. 175, 603 S.E.2d 197 (2004))].
Jones v. Logan Cnty. Bd. of Ed., 247 W. Va. 463, —, 881 S.E.2d 374, 384 (2022); accord Strahin, 216 W. Va. at 180, 603 S.E.2d at 202, Syl. Pt. 12, in part ("If the court determines that disputed facts related to foreseeability, viewed in the light most favorable to the plaintiff, are sufficient to support foreseeability, resolution of the disputed facts is a jury question.").
After careful review of the record in this case, I find that there were sufficient facts – including the Mon Power employee’s testimony, discussed supra – which, when viewed in the light most favorable to the petitioners, warranted putting before a jury the question of foreseeability and whether respondents owed a duty to safeguard against conduct like Mr. Boyce’s under these circumstances. There were disputed facts that required a jury’s resolution of whether the respondents bore some percentage of fault3a for Mr. Boyce’s injuries, given: (1) the existence of low-hanging lines owned by the Frontier and Atlantic Broadband respondents which were well below the height required by the safety standards in effect at the time of their installation,4a and (2) the evidence that Mon Power (and inferentially the other respondents, as noted above) was aware of other instances in which lines had been tied up, albeit with rope or string rather than cellophane. See id.
Instead, the majority makes precisely the same error the circuit court did, concluding as a matter of law that Mr. Boyce’s conduct and injury here were foreseeable, even though there are obvious disputes of fact that call that determination into question. Our law is plain: "questions of negligence, contributory negligence, proximate cause, intervening cause and concurrent negligence are questions of fact for the jury where the evidence is conflicting or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them." Syl. Pt. 10, Harbaugh v. Coffinbarger, 209 W. Va. 57, 543 S.E.2d 338 (2000) (internal citation omitted).
The majority compounds its error by agreeing with the circuit court on the issue of causation that Mr. Boyce’s conduct constituted an intervening cause as a matter of law because he "willfully" attempted to move the obstructing cables. See Yourtee v. Hubbard, 196 W. Va. 683, 690, 474 S.E.2d 613, 620 (1996) ("Generally, a willful, malicious, or criminal act breaks the chain of causation.") (citation omitted). However, this Court has further explained that
[a]n intervening cause, however, may jump in, break that chain of causation, and so constitute the new, effective cause of the injury. We have held that " " ‘ ‘[a]n intervening cause, in order to relieve a person charged with negligence in connection with an injury, must be a negligent act, or omission, which constitutes a new effective cause and operates independently of any other act, making it and it only, the proximate cause of the injury.’ Syllabus Point 16, Lester v. Rose, 147 W. Va. 575, 130 S.E.2d 80 (1963) [modified on other grounds, State ex ret. Sutton v. Spillers, 181 W. Va. 376, 382 S.E.2d 570 (1989)]." Syllabus Point 1, Perry v. Melton, 171 W. Va. 397, 299 S.E.2d 8 (1982).’ Syl. Pt. 3, Wehner v. Weinstein, 191 W. Va. 149, 444 S.E.2d 27 (1994)." But not every intervening event wipes out another’s preceding negligence. In fact, " ‘[a] tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor at the time of his negligent conduct.’ Syl, Pt. 13, Anderson v. Moulder, 183 W. Va. 77, 394 S.E.2d 61 (1990)."
Wal-Mart Stores East, 244 W. Va. at 450, 854 S.E.2d at 270 (footnotes omitted).
I agree that there is little if any question that Mr. Boyce acted willfully in attempting to move the lines; however, the question remains as to whether that conduct was reasonably foreseeable by the respondents, and if so, to what extent, if any, the respondents were also at fault for the resultant injury. This is a factual question that can only be decided by a trier of fact – a jury. See Harbaugh, 209 W. Va. at 60, 543 S.E.2d at 341, Syl. Pt. 10. Assuming that Mr. Boyce’s fault did not outweigh the combined fault of the respondents, he could still recover notwithstanding his willfulness in engaging in this behavior. W. Va. Code § 55-7-13c(c).
For the foregoing reasons, I respectfully dissent. I am authorized to state that Justice Hutchison joins in this separate opinion.